Pratt v Bindaree Beef Pty Ltd
[2024] NSWPIC 386
•18 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Pratt v Bindaree Beef Pty Ltd [2024] NSWPIC 386 |
| APPLICANT: | Pamela Pratt |
| RESPONDENT: | Bindaree Beef Pty Limited |
| MEMBER: | Gaius Whiffin |
| DATE OF DECISION: | 18 July 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for injury to left ankle with consequential conditions to lumbar spine, left hip, and right hip alleged to result from the left ankle injury; chronic pain; claim for compensation pursuant to section 66; consideration of applicant’s statements, medical reports, other treatment records, and claim correspondence; whether the applicant sustained consequential conditions to her lumbar spine, left hip, and right hip resulting from the accepted left ankle injury sustained; how the terms of the referral to medical assessment of the applicant’s chronic pain should be worded; Chapter 17 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021; Sakr v Merrylands Christian Preschool Association Inc, Kumar v Royal Comfort Bedding Pty Ltd, Kooragang Cement Pty Ltd v Bates, Moon v Conmah Pty Ltd, Nguyen v Cosmopolitan Homes, Drca v KAB Seating Systems Pty Ltd, and Arquero v Shannons Anti Corrosion Engineers Pty Ltd considered; Held – the applicant has sustained consequential conditions to her lumbar spine, left hip, and right hip resulting from the accepted left ankle injury which she sustained; matter remitted to the President for referral to a Medical Assessor to determine permanent impairment. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant has sustained consequential injuries to her left hip, right hip, and lumbar spine, resulting from the accepted left ankle injury which she sustained on 6 May 2016. The Commission orders: 1. I remit this dispute to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998, for assessment as follows: (a) date of injury: 6 May 2016; (b) body systems/parts: (i) left lower extremity (ankle and hip), (ii) right lower extremity (hip), (iii) lumbar spine, (iv) chronic pain (to be assessed if found in accordance with Chapter 17 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 - but noting that the respondent disputes that chronic pain could be found), and (c) method of assessment: whole person impairment. 2. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the respondent’s Reply and attached documents; (c) the applicant’s Application to Admit Late Documents dated 27 June 2024 and attached documents; (d) the respondent’s Application to Admit Late Documents dated 26 June 2024 and attached documents, and (e) this Certificate of Determination. |
STATEMENT OF REASONS
BACKGROUND
Pamela Pratt (the applicant) is 63-years-old. She was employed by Bindaree Beef Pty Limited (the respondent) as a quality assurance officer, when she sustained an injury to her left ankle on 6 May 2016.
The respondent has accepted that this injury is compensable and falls within s 4 of the Workers Compensation Act 1987 (the 1987 Act). It has made relevant payments to the applicant for weekly benefits compensation and for her expenses pursuant to s 60 of the 1987 Act, with respect to the injury.
The applicant now makes a claim for lump sum compensation in relation to the injury, pursuant to s 66 of the 1987 Act. The claim was made by letter dated 23 October 2023 from the applicant’s solicitors. It was based upon an assessment provided by Dr Patrick of 30% whole person impairment. In making that assessment, the doctor assessed not only the applicant’s left ankle, but also her left hip, right hip, and lumbar spine, as well as her chronic pain. The doctor opined that she had sustained injuries to her left hip, right hip, and lumbar spine, and was also suffering from chronic pain, as a result of or consequential to the left ankle injury on 6 May 2016.
The respondent (on 1 February 2024) issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), for the applicant’s claim pursuant to s 66 of the 1987 Act, specifically denying liability for any injuries to the applicant’s left hip, right hip, or lumbar spine, as a result of or consequential to her left ankle injury on 6 May 2016.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission), the applicant requests that the Commission determine her entitlement pursuant to s 66 of the 1987 Act.
The dispute came before the Commission for a preliminary conference on 29 May 2024, when the respondent confirmed that it did not oppose the applicant’s left ankle injury being referred to a Medical Assessor for assessment of whole person impairment. However, it maintained that it disputed whether the applicant had sustained consequential left hip, right hip, and lumbar spine injuries as a result of her accepted injury to her left ankle. Further, in relation to the applicant’s allegation that she suffers from chronic pain which is assessable in accordance with Chapter 17 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 (the impairment guidelines), the respondent confirmed that it did not agree that the applicant suffers from chronic pain that is assessable in this regard, but consented to a Medical Assessor determining whether the applicant’s condition fulfils the criteria in the impairment guidelines in order for an assessment to be made pursuant to Chapter 17 of them.
ISSUES FOR DETERMINATION
The parties therefore agree that the following issues are the only issues that remain in dispute and require determination prior to a Medical Assessment referral:
(a) has the applicant sustained consequential injuries to her left hip, right hip, and lumbar spine, resulting from the accepted left ankle injury which she sustained on 6 May 2016, and
(b) how should the terms of the referral to Medical Assessment of the applicant’s chronic pain, be worded.
Matters previously notified as disputed
As above.
Matters not previously notified
None.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The dispute came before the Commission for conciliation/arbitration (by MS Teams audio-visual link) on 5 July 2024. On that occasion, Mr Ross Goodridge of counsel appeared for the applicant, instructed by Mr McKean. The applicant was present. Mr Lachlan Robison of counsel appeared for the respondent, instructed by Ms Malone. Ms Tan, from the respondent’s insurer, was also present. As a resolution of the dispute was not possible during the conciliation conference, the dispute proceeded to an arbitration hearing before me.
The issues in dispute (see paragraph 7 above) were agreed upon between the parties, and it was also agreed that once the Commission had determined those issues, the dispute would be referred to Medical Assessment, the terms of which would be dependent upon that determination.
Both parties then confirmed that they had no objection to all of the documents lodged with the Commission by the other party being admitted into evidence.
EVIDENCE
Documentary evidence
As a result, the following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents;
(b) the respondent’s Reply (Reply) and attached documents;
(c) the applicant’s Application to Admit Late Documents dated 27 June 2024 (applicant’s AALD) and attached documents, and
(d) the respondent’s Application to Admit Late Documents dated 26 June 2024 (respondent’s AALD) and attached documents.
Oral evidence
There was no oral evidence called at the arbitration hearing.
Applicant’s evidence
The applicant has provided a very brief statement dated 20 March 2024, found at page 1 of the ARD.
She says that she had no prior issues with her back and hips before 2019.
She confirms that as a result of her left ankle injury on 6 May 2016, she has been left with “significant difficulties”, for which she has “undergone numerous surgeries and operations”. She explains that following the surgeries, she was non-weight bearing on her left leg and “required to effectively exclusively use my uninjured leg”. This “caused me to substantially alter my gait”.
She also explains that from “the outset of this injury”, she was aware that she was limping. She says:
“As a result of the altered gait and the change in my posture to alleviate the pain in my injured left ankle I began to develop symptoms in or around 2019 of problems with my back and hips. I understand that at that stage these problems began to be documented by the various medical practitioners and I will be seeking to rely on their evidence.”
She says that she also kept a diary of her symptoms from January 2018 to April 2021, and that diary is attached to the ARD from page 26. Although the diary is not signed, I am willing to accept that it was prepared by the applicant in accordance with the assertion in her signed statement. From the diary, I note:
(a) on 17 January 2018, she noted that her balance issues were improving, and that she was walking with an aid to keep weight off her injured foot;
(b) on 23 January 2018, she noted that she was “walking fairly well”;
(c) on 31 January 2018, she noted that she was able to walk without a walking aid on flat ground;
(d) on 2 March 2018, she noted that she was still using a walking aid on uneven ground;
(e) she refers to regular walking for exercise during the first six months of 2018, which often caused her pain and swelling;
(f) following surgery on 9 July 2018, she had her plaster removed and her left foot was placed in a boot on 22 August 2018 – she was then not allowed to weight bear for six weeks;
(g) on 3 October 2018, she was advised to continue to wear the boot and use crutches for another two months, while “slowly weight bearing”;
(h) on 15 October 2018, she was trying to walk with the assistance of only one aid on flat ground;
(i) on 19 October 2018, she was in significant pain after weight bearing;
(j) on 31 October 2018, she walked with one crutch “a fair way” but was still not able to put much weight on her left foot;
(k) by 19 November 2018, she was trying to walk in the boot with no walking aid on flat surfaces, but was still using a walking aid on grades;
(l) on 23 November 2018, she noted that her left foot was “terribly sore” after walking in the boot unassisted on flat ground;
(m) on 28 November 2018, she removed the boot, but was still to be aided by a walking aid over long distances or grades;
(n) on 29 March 2019, she noted that her left leg was “now 1 and a bit cm shorter than the other one” and that she needed orthotics;
(o) on 24 April 2019, she noted that her new orthotics were making her left foot sore, but that they had “improved my stance already”;
(p) on 17 June 2019, she noted that her “Knee, Hip, Lower back and R/ankle are now all effected [sic] by the way I damn well walk”;
(q) following surgery on 15 August 2019, her left foot was placed in a boot;
(r) on 14 October 2019, she was advised not to further use a walking aid “as I have to get my foot mobile” - however, “Walking without walking cane is giving me all sorts of discomfort and unusual sensations”;
(s) on 27 November 2019, she noted that her left foot was “not very appreciative of pressure” when she wore steel-capped boots for the first time after her left ankle injury;
(t) on 4 December 2019, she noted that she could hardly weight bear after wearing steel-capped boots - similar issues are also recorded on 6 January 2020 and 21 January 2020;
(u) on 25 March 2020, she noted that her hips, knees, and right ankle were sore;
(v) on 30 March 2020, she noted that she had needed to use one crutch again;
(w) on 14 April 2020, she advised her first aid officer at work that her knees, hips and back “are always bloody sore now”;
(x) on 27 April 2020, she noted that she needed to use a walking aid “to try and keep weight off of mt [sic] foot”;
(y) she had further heel/ankle surgery on 11 May 2020;
(z) on 2 June 2020, she noted that her hips and lower back were “still no good” – she had them massaged on 5 June 2020;
(aa) she further complained about pain in her hips and back on 9 June 2020 and 10 June 2020 – she couldn’t work because of that pain on 11 June 2020 and 12 June 2020;
(bb) on 19 June 2020, she noted that she was still “using my stick to help support my back and just take some of my weight off my sore foot/ankle”;
(cc) on 22 June 2020, she noted that it was the first day that she had not used at least one of her crutches (presumably since her 11 May 2020 surgery) – she noted that she felt “Pulling/pain all down the back more so left side, Back and hips still uncomfortable”;
(dd) she further noted back pain on 29 June 2020, 30 June 2020, 1 July 2020, 2 July 2020, 14 July 2020, 15 July 2020, 16 July 2020, 20 July 2020, 21 July 2020, 22 July 2020, 23 July 2020, 24 July 2020, 28 July 2020, 29 July 2020, 31 July 2020, 6 August 2020, 7 August 2020, 10 August 2020, 12 August 2020, 14 August 2020, 24 August 2020, 29 September 2020, 29 January 2021, and 1 February 2021, and
(ee) the statement otherwise provides fairly detailed recordings regarding the applicant’s ongoing left ankle/foot pain and other symptoms.
In terms of medical evidence as to the causative relationship between the applicant’s accepted left ankle injury and her alleged resulting injuries to her back and hips, the applicant largely relies upon opinions provided by Dr Patrick in three reports.
The doctor’s first report is dated 11 September 2023 and found at page 169 of the ARD. The report followed a telephone consultation on 3 September 2021 as well as a face-to-face consultation on 20 October 2022.
The doctor notes the applicant’s left ankle injury on 6 May 2016, as well as the surgical interventions performed upon her by Dr Nicholson following that injury, which occurred on 4 September 2017, 9 July 2018, 15 August 2019, 11 May 2020, and 14 March 2022. He also notes the development of a complex regional pain syndrome type II, extending up the applicant’s left leg. Under the heading of “Subsequent Progress”, he further notes the applicant as suffering “Lumbar spinal problems; problems with both right and left hip problems”. He records the applicant as walking with the assistance of a cane.
Unfortunately, the doctor does not directly address the cause of the applicant’s back and hip pain in this report, although I believe that it can be inferred from the report that he assumed that they resulted from her left ankle injury. In this regard, the doctor assesses the applicant’s whole person impairment in relation to her back and hips, and when considering whether to make any deductions from those assessments to take into account previous injuries or conditions (in accordance with s 323 of the 1998 Act), he opines:
“I do believe that the injury and indeed injuries have certainly caused a condition in the applicant Pamela Pratt which could be termed a disease or disease process, but there has been no significant problematic condition prior to 6 May 2016…I would attribute in her particular case just one tenth only and allocated to lumbar spine. I believe that the right and left hips and left lower extremity (ankle fusion) and the causalgia are all appropriately nil deductions in this regard.”
The doctor also opines the following, but does not expand upon this opinion:
“I do believe that her employment has indeed been a substantial contributing factor to Pamela Pratt’s injuries.”
The doctor’s second report is more helpful. It is dated 2 April 2024 and found at page 189 of the ARD. The doctor opines:
“I have viewed the Section 78 Notice dated 1 February 2024 issued by the insurance company. In that regard, I disagree with the views expressed by Dr Miniter. I believe that the applicant’s condition with her lumbar spine and with her hips which have caused impairment to her lumbar spine and right and left lower extremities, are causally related to the original injury to the left ankle/foot. I believe the problems with her hips and lumbar spine have come on as a result of the altered gait caused by the original injury, and the various surgeries including having her injured left ankle being put in plaster, walking with moon boot, using crutches and generally walking with a limp, and altered gait, has aggravated underlying degenerative conditions in both her lumbar spine and of her hip.”
The doctor then provides a third report dated 21 June 2024, which is found at page 1 of the applicant’s AALD. The doctor repeats virtually verbatim the opinion extracted at paragraph 26 above. He then criticises opinions expressed by Associate Professor Miniter:
(a) Associate Professor Miniter did not find any altered gait of the applicant’s, which was “in stark contrast to the notations throughout the applicant’s medical file that she did indeed have an altered gait”;
(b) Associate Professor Miniter referred to the AMA Guides to the Evaluation of Disease and Injury Causation as stating that there is no connection between altered gait and back and hip problems, but this guide is “certainly not a bible” and not particularly helpful with regard to the applicant – the guide “does not appear to [be] the primary source here”, and
(c) Dr Patrick confirms that he is familiar with “the medical literature provided”, and maintains that – “It is the case that there can be connection between altered gait as a result of injury to a lower extremity and potential problems with back or hip”.
Dr Patrick finalises his report by advising:
“She is now on two crutches or a stick and her low back and right and left hips are both causing her problems and this is as a direct result of her original injury of 6 May 2016. Pamela Pratt requires every support.”
The applicant does not rely upon any medico-legal reports from any of her treating medical practitioners specifically addressing the causative relationship between her accepted left ankle injury and her alleged resulting injuries to her back and hips. However, there are numerous reports from these practitioners in the application to resolve a dispute, some of which do provide me with assistance in determining that causative relationship.
In a completed questionnaire (found at page 50 of the ARD) to the respondent’s insurer on 19 September 2016, the applicant’s general practitioner (Dr Bentel) advised that her limited ability to weight bear impacted upon her work capacity. The doctor also opined that the applicant’s symptoms were consistent with her 6 May 2016 injury and that the doctor was not aware of “any injury or activity outside of work contributing to this”.
In a report (found at page 54 of the ARD) dated 1 February 2017, Dr Diebold (orthopaedic surgeon) found the applicant with a “mild limp” on physical examination – he took a history that the limp developed after the injury on 6 May 2016.
In a report (found at page 58 of the ARD) dated 14 March 2017, Dr Diebold informed the respondent’s insurer that following proposed surgery that he wished to perform upon the applicant’s left ankle, she would require a boot for three weeks.
In a report (found at page 63 of the ARD) dated 5 April 2017, Dr Diebold found the applicant with a “moderate limp” – he had operated upon her left ankle on 27 March 2017.
In a report (found at page 64 of the ARD) dated 27 April 2017, Dr Diebold recorded that following the applicant’s 6 May 2016 injury, she had developed “marked swelling and limp”.
In a report (found at page 67 of the ARD) dated 27 June 2017, Dr Nicholson (the applicant’s new orthopaedic surgeon) recorded that she walked with a limp and with a “markedly antalgic gait”. He opined that she had sustained a “pretty significant injury to her left ankle on 6.5.16” and that her pain was associated with the peroneal tendon region behind the lateral malleolus.
In a report (found at page 69 of the ARD) dated 25 July 2017, Dr Nicholson informed the respondent’s insurer that following proposed surgery that he wished to perform upon the applicant’s left ankle, she would be non weight bearing for 12 weeks – her left ankle would be in plaster for six weeks and then in a boot for six weeks.
In a report (found at page 72 of the ARD) dated 18 October 2017, Dr Nicholson advised the applicant to remain non weight bearing following her 4 September 2017 left ankle surgery, with her left foot in a boot.
In a report (found at page 73 of the ARD) dated 6 December 2017, Dr Nicholson advised that he was happy for the applicant to start weight bearing through her left foot – he also suggested gait re-training through physiotherapy.
In a report (found at page 74 of the ARD) dated 21 January 2018, Gabriel Fernandes (physiotherapist) advised that his treatment of the applicant had involved “practicing [sic] normal gait”.
In a report (found at page 80 of the ARD) dated 5 June 2018, Dr Nicholson advised that the applicant was having further left ankle surgery on 9 July 2018, following which her left ankle would be in plaster for four weeks, and then in a boot – she would need to remain non weight bearing.
In a report (found at page 84 of the ARD) dated 3 October 2018, Dr Nicholson recorded that the applicant had been able to take some weight through her heel, but that he needed her to weight bear more, with the assistance of her boot and a single crutch.
In a report (found at page 85 of the ARD) dated 28 November 2018, Dr Nicholson advised that the applicant had been fully weight bearing in her boot and had even spent some time walking out of the boot – her gait however was “obviously not normal” and needed re-training through physiotherapy.
In a podiatry referral (found at page 86 of the ARD) dated 3 December 2018, a general practitioner (Dr Brown) referred to the applicant requiring podiatry “in the context of L ankle work injury and abnormal gait”.
In a report (found at page 87 of the ARD) dated 13 February 2019, Dr Nicholson noted that the applicant was getting some pain in the anterior aspect of her left ankle which sounded like impingement – he then wondered “if this is related to alterations in her gait as she has been recovering from her previous injury and surgery”.
In a report (found at page 90 of the ARD) dated 28 August 2019, Dr Nicholson advised that (following left ankle surgery that he had performed upon her on 15 August 2019) the applicant could now weight bear as tolerated and also begin re-attending physiotherapy for gait re-training.
In a report (found at page 93 of the ARD) dated 5 February 2020, Dr Nicholson recorded that the applicant was fully weight bearing but walking with an antalgic gait.
In a report (found at page 96 of the ARD) dated 29 April 2020, Dr Nicholson informed the respondent’s insurer that he proposed further left ankle surgery for the applicant, following which she might require crutches, although she would be allowed to weight bear as tolerated.
In a report (found at page 98 of the ARD) dated 28 May 2020, Dr Nicholson advised that, following further left ankle surgery on 11 May 2020, the applicant was “actually walking with a satisfactory gait”.
In a report (found at page 99 of the ARD) dated 9 July 2020, Dr Nicholson recorded that the applicant’s range of motion was excellent and that she could walk satisfactory, but that she did have “a bit of an antalgic component when her ankle plays up”.
In a report (found at page 119 of the ARD) dated 29 September 2021, Dr Nicholson noted that the applicant was having ongoing issues with her left ankle, even though it was less swollen than previously – he recorded her walking with a markedly antalgic gait.
In a report (found at page 121 of the ARD) dated 12 November 2021, Dr Cartwright (a pain medicine physician whom the applicant had been referred to) took a history of the applicant’s left ankle symptoms and treatment since her injury on 6 May 2016 and then noted:
“She is having secondary problems now with low back pain and right hip pain secondary to her antalgic gait including being unable to achieve even 90° of dorsiflexion at the ankle joint.”
In a report (found at page 129 of the ARD) dated 21 December 2021, Dr Nicholson informed the respondent’s insurer that he wished to perform further left ankle surgery upon the applicant in the form of a fusion, following which she would initially require the use of a knee roller; she might also need to use crutches or a frame; her left ankle would be in a plaster cast for around six weeks, and her left ankle would then be in a boot. He also advised that the applicant’s “current symptoms and diagnosis are entirely related to a significant injury sustained to her left ankle on 6 May 2016 while at work”.
In a report (found at page 140 of the ARD) dated 28 April 2022, Dr Nicholson noted that following her left ankle fusion surgery on 14 March 2022, the applicant was using crutches to avoid weight bearing and she was still in a boot – the doctor wanted her to partially weight bear in the boot over the next few weeks, and then gradually increase the weight bearing.
In a report (found at page 144 of the ARD) dated 23 June 2022, Dr Nicholson advised that the applicant no longer needed to wear a boot and that he had referred her back for gait re-training to an exercise physiologist.
In a report (found at page 145 of the ARD) dated 4 July 2022, Dr Nicholson confirmed to the respondent’s insurer that “Pamela has had a long history of unusual neuropathic type symptoms in her left foot and lower limb following her original workplace injury”.
In a report (found at page 153 of the ARD) dated 20 September 2022, Dr Nicholson noted that the applicant was mobilising independently but using a single crutch if she had to walk longer distances.
In a report (found at page 161 of the ARD) dated 22 February 2023, Dr Cartwright noted that the applicant was “getting some issues with back pain secondary to her gait as well now”.
In a report (found at page 163 of the ARD) dated 10 May 2023, Dr Cartwright noted that the applicant was “struggling with physical activity, necessitating the use of a stick and Canadian crutches for mobility”.
In a report (found at page 168 of the ARD) dated 17 October 2023, Dr Nicholson noted that the applicant was still mobilising with an aid and that:
“Pamela also mentioned to me that her back is becoming significantly troublesome as a result of her long-term gait abnormalities. I understand that this is being assessed as part of her work cover injury claim.”
The ARD also contains some clinical notes from a physiotherapist (Sally Sweeney), an exercise physiologist (Declan Druitt), and the applicant’s general practitioners (mainly Dr Cruickshank). It is not clear to me however that these notes are complete. I have considered the entirety of the notes provided, but (apart from the entries mentioned below) will not refer to them further unless specifically directed to aspects of them during the parties’ submissions. In this regard, there are limited entries relevant to the specific issues which I need to determine.
In relation to the clinical notes from Sally Sweeney (found from page 221 of the ARD), I relevantly note:
(a) the notes cover the period between 18 December 2018 and 30 October 2020;
(b) the notes refer to the need for the applicant to be “more even with weight bearing”, on 21 December 2018 and 3 January 2019;
(c) the notes refer to the applicant walking as much as she is able to (up to 7km walks), on 15 January 2019, 24 January 2019, 31 January 2019, 21 February 2019, 12 March 2019, 21 March 2019, and 9 May 2019;
(d) the notes refer to the applicant’s walking as improved with orthotics, but that she “still feels like she is rolling out on (L) ankle”, on 9 May 2019;
(e) the notes refer to the applicant be advised on 16 September 2019 that it was “better to walk ‘normal’ with minimal weight on (L) than hobble & limp”;
(f) the notes refer to the applicant’s gait issues and her need for gait re-training, on 16 September 2019, 26 September 2019, 8 October 2019, 22 October 2019, 12 November 2019, 26 November 2019, 10 December 2019, 13 February 2020, 27 February 2020, 12 March 2020, 23 April 2020, 7 May 2020, 19 May 2020, 4 June 2020, 10 June 2020, 18 June 2020, 23 June 2020, and 30 June 2020;
(g) the notes record “limp noted (L) leg” on 8 October 2019, 22 October 2019, 12 November 2019, 26 November 2019, 10 December 2019, 13 February 2020, 27 February 2020, 12 March 2020, 23 April 2020, 7 May 2020, 19 May 2020, 4 June 2020, 10 June 2020, 18 June 2020, 23 June 2020, and 30 June 2020;
(h) the notes refer to the applicant walking slowly to concentrate on her gait issues, on 22 October 2019;
(i) the notes record the following on 19 May 2020:
“grimacing with walk with lower back pain PAIVM L1/2/3 stiff & Pain B/L TOP paraspinals lower back & upper glutes vTOP piriformis tight hip flexors ER good week Ax // SSS L4/5 tightness hip flexors & weakness. abnormal gait. combination = pain”;
(j) the notes record ongoing back pain on 4 June 2020, 10 June 2020, 18 June 2020, 23 June 2020, 30 June 2020, 7 July 2020, 24 July 2020, 31 July 2020 – treatment on these dates is directed towards the applicant’s back and hips;
(k) the notes record the following on 18 June 2020 – “pt quite twisted in hips & back when she demonstrated in clinic”, and
(l) the notes record the following on 31 July 2020, 6 August 2020, 14 August 2020, 20 August 2020, 27 August 2020, and 30 October 2020 – “gait – mobilising unaided with obvious limp”.
In relation to the clinical notes from Declan Druitt (found from page 243 of the ARD), I relevantly note:
(a) the notes cover the period between 30 January 2019 and 10 October 2022;
(b) the notes regularly refer to the applicant’s walking for exercise – but also refer to her difficulties in this regard especially with uneven ground;
(c) the notes regularly refer to balance and stability being a focus of treatment;
(d) on 14 February 2019 – “Reported R hip pain with long periods of standing” - treatment is then focused on hip activation;
(e) on 20 March 2019 – “Feels as though she has gone backwards with balance”;
(f) on 3 April 2019 – “Saw podiatrist last week – leg length discrepancy, causing back and hips to play up – will need orthotics to even out”;
(g) the notes specifically record the applicant limping on 15 April 2019;
(h) on 4 September 2019 – (in relation to the applicant’s self-reported tolerance levels) “Standing: 10-15 mins (puts more weight on right leg)”;
(i) on 17 June 2020 – “Is locked up in hips and lower back”;
(j) the notes record that the applicant “has poor gait” on 9 September 2020;
(k) the notes also record back pain on 1 July 2020, 15 July 2020, 16 October 2020, and 26 October 2020;
(l) the notes also record hip pain on 15 July 2020, and
(m) on 29 July 2020, the notes record ongoing treatment (in a swimming pool) as having assisted not only the applicant’s left ankle pain but also her pain in her back and hips.
In relation to the clinical notes from the applicant’s general practitioners (found from page 261 of the ARD), I relevantly note that the notes only record consultations between 3 July 2018 and 11 April 2019, none of which seem to specifically mention any back or hip symptoms of the applicant’s.
Respondent’s evidence
The respondent relies upon opinions provided by Associate Professor Miniter in two reports.
The first report is dated 2 January 2024 and found at page 36 of the Reply.
The doctor commences by recording the following:
“Thank you for asking me to review Mrs Pratt. She presents today in a most unusual fashion, and I note that her current presentation appears to be as a result of surgical complications which have finally led to a subtalar fusion which has been successful…The matter began in 2016 and has been basically unresolved since that time. As far as I can identify, the original investigations following the minor episode at work were those of peroneal tendinopathy, this being secondary to a Cavo varus foot configuration (an inherited condition). As you may understand, this is a constitutional problem and peroneal tendinopathy is very commonly seen in this situation.”
He then obtains a history of the applicant’s operative treatment. He discounts any diagnosis of chronic regional pain syndrome in relation to her, noting that on physical examination:
“Inspecting the undersurface of her foot indicates that there is no abnormal wear pattern and indeed, she appears to have the same degree of staining of her feet on one side as compared to the other [emphasis in original]. In other words, whilst she tells me today that she limps and uses a crutch, the objective information would suggest that she is in fact walking normally or relatively normally and there is no significant evidence of asymmetrical use of one foot or another. I draw your attention to the fact that there is no muscle wasting in the lower limb and this is against a diagnosis of CRPS.”
The doctor does not record any physical examination of the applicant’s back or hips, or indeed obtain any history from the applicant regarding her symptoms in her back and hips.
The doctor emphasises that the applicant’s initial left ankle “presentation without doubt was not injury”, advising:
“The non-work related nature of this matter has been discussed above. Even though this appears to have been accepted as work-related, peroneal tendinopathy is very common in cavo-varus feet and it would appear that this was the initial indication for treatment.”
He then adds (without explaining further):
“There are no features to suggest that her back or hip conditions are associated with the alleged injury to her left foot. These associations have been long investigated and discounted. The fact that Dr Patrick chooses to associate them would tend to suggest that he is not familiar with the medical literature.”
In relation to the applicant’s current condition, the doctor opines:
“She does not require any further treatment. The final treatment by Dr Nicholson has been very effective. She has a well aligned hindfoot, there are no issues with the surgical treatment itself and I believe in finality she has a good outcome from this matter. She is definitely fit to return to work.”
The second report of Associate Professor Miniter is dated 30 May 2024 and found at page 1 of the respondent’s AALD.
The report attaches some extracts from the AMA Guides to the Evaluation of Disease and Injury Causation, but otherwise does no more than answer a specific question addressed to him by the respondent’s solicitors, as follows:
“I refer you to the AMA Guides to the Evaluation of Disease and Injury Causation. This reference guide clearly determines that there is no evidence of abnormal gait causing either lower back pain or hip disturbance. I have read the report from Dr Patrick. With the greatest of respect to Dr Patrick, we must rely upon scientific evidence, rather than anecdote, and in this case, anecdote appears to be the primary source. I see no reason to change my opinion in relation to this matter. I note also that you have indicated that Dr Patrick has indicated issues with the back and hips where there has been no Imaging…Res ipse loquitur.”
In relation to the extracts attached to the report, I note:
(a) there is a section on ‘gait’ which commences:
“Abnormalities of gait are important in assessing any individual with spinal or lower extremity complaints and pathology. An individual who demonstrates normal gait and who can tandem, tiptoe, and heel walk is unlikely to have significant spine or lower extremity pathology. Gait must be observed over some time and over reasonable distances. The confines of an examination room may not be sufficient”;
the section then discusses examination techniques for the assessment of an abnormal gait, but it does not comment regarding the effects of an abnormal gait;
(b) there is a section on ‘observations’ that does no more than provide advice to medical examiners as to inconsistencies to look out for during examinations;
(c) studies are referred to which found:
(i)a strong association between frequent bending and low back pain;
(ii)strong evidence for an association between trunk flexion and rotation and work absence;
(iii)no statistically significant association between occupational sitting and low back pain;
(iv)strong evidence that standing and walking fewer than two hours per day is not associated with back pain, and
(v)insufficient evidence for an association between standing and walking for more than two hours per day and back pain, and
(d) there is a table summarising the evidence for associating low back pain with work-related activities, personal factors, and psychosocial factors – however, abnormal gait is not considered in this table.
The respondent also in its Reply relies upon the following:
(a) it attaches various certificates of capacity dated between 2 September 2016 and 26 April 2024 – none of these certificates refer to any injury to the applicant’s back or hips;
(b) there is a report from Dr Diebold dated 2 March 2017 (at page 32) – the doctor opines:
“The initial injury was an inversion injury which stretches the lateral structures of the ankle, including the peroneal tendons. The symptoms have never settled and have persisted in this peroneal tendon area since the injury”, and
(c) there is a report from Dr Nicholson dated 3 July 2023 (at page 35) – the doctor opines that the applicant’s 6 May 2016 injury is still the main contributing factor to her current incapacity, but that her mechanical orthopaedic issues are now largely stable, and that from an orthopaedic perspective she would be able to undertake suitable employment duties.
Applicant’s submissions
The applicant’s submissions were recorded and form part of the Commission’s record. I do not propose to go through them in detail.
The applicant initially takes me to the clinical notes of Declan Druitt (particularly those mentioned at paragraphs 62(d), 62(f), 62(k), 62(l), and 62(m) above) and the clinical notes of Sally Sweeney (particularly those mentioned at paragraphs 61(j) and 61(k) above). She submits that the notes reveal an “accepted commonsense causal relationship” being found between the applicant’s condition in her back and hips and her ankle injury, as early as 3 April 2019. Thereafter, there is no other suggested cause for the applicant’s recorded ongoing problems in her back and hips.
The applicant also takes me to her diary records as revealing no other suggested cause for her back and hip symptoms.
She takes me to Dr Cartwright’s report dated 12 November 2021 (mentioned at paragraph 51 above) and submits that the report is a “clear statement antalgic gait is capable of causing problems in the hips and back”.
She then takes me to Dr Patrick’s reports and agrees with me that his first report does not provide me with very much assistance on issues of causation. She however emphasises the quote from his second report extracted at paragraph 26 above, and agrees with me that the extract represents the height of her case on causation in relation to her back and hip conditions.
In relation to Associate Professor Miniter’s first report, she notes that he was not provided with the clinical notes from Declan Druitt and Sally Sweeney, or with her diary records. She also notes that he does not even accept that she suffered a work-related injury to her left ankle on 6 May 2016. Further, the only real reference to her hip and back symptoms in the report is the quote extracted at paragraph 70 above.
In relation to Associate Professor Miniter’s second report, she criticises his reliance on the AMA Guides to the Evaluation of Disease and Injury Causation, as these guides are “clearly directed at the other end of the telescope”, in that they do not deal with the causation of altered gait or what it can cause. They are “off point” and as a result, the applicant accuses the doctor of not only being “aggressively wrong” but also of citing unsupportive evidence.
In answer to my questioning as to why none of her treating doctors have provided medico-legal reports regarding the causation of her back and hip conditions, the applicant refers to an accumulation of opinions that can be found in the clinical records of her treating doctors. She concedes a lack of clarity regarding causation issues in the clinical records, but submits that those records need to be taken in context and having regard to the whole of her history. When balancing the evidence, she advises that she wishes that she was putting more weight on her side of the relevant scale, but argues that there is still sufficient evidence on that side of the scale, especially as the only evidence on the other side of the scale is Associate Professor Miniter’s opinions, which are mistaken in approach, fundamental reasoning, and the logic applied.
Respondent’s submissions
The respondent’s submissions were also recorded and form part of the Commission’s record. I do not propose to go through them in detail.
The respondent first addresses the terms of the referral of the applicant’s chronic pain to Medical Assessment, arguing that the referral should be silent in this regard. The relevant body parts found to be injured as a result of the applicant’s 6 May 2016 injury are to be mentioned, and then if the Medical Assessor (in assessing the impairment from those body parts) also finds chronic pain in accordance with the criteria in Chapter 17 of the impairment guidelines, then “so be it”. Chronic pain should not be mentioned as it might encourage a Medical Assessor to find it, or to consider it “jurisdictionally compulsory” to assess it. The respondent refers to Sakr v Merrylands Christian Preschool Association Inc [2022] NSWSC 768 (Sakr) as supporting authority.
The respondent was advised of my normal practice when referring chronic pain to Medical Assessment, to either specifically request an assessment of chronic pain but to note in parentheses that the assessment could only be made if found in accordance with Chapter 17 of the impairment guidelines, or to not specifically request an assessment of chronic pain but to add a notation to the relevant referral along the lines that the applicant alleges chronic pain, the respondent disputes it, but it is to be assessed if found in accordance with Chapter 17 of the impairment guidelines. When faced with those two options, the respondent advised that it preferred the second option.
The respondent then deals with the causation of the applicant’s back and hip symptoms, confirming that there is no suggestion as to the absence of such symptoms. The respondent however takes me to the applicant’s statement, describing it as self-serving and in the nature of submissions, rather than evidence. It is of no assistance to me in ascertaining the causation of those symptoms.
The respondent emphasises the lack of evidence from treating practitioners as to the causation of the symptoms. It makes the “global submission” that the evidence from the treating practitioners almost all deals with the applicant’s ankle injury, and it also submits that that evidence suggests a degree of recovery in this regard (specifically mentioning the reports from Dr Nicholson referred to at paragraphs 49 and 50 above).
The respondent criticises the opinions of Dr Patrick:
(a) he is “grossly deficient in the expression of his opinion” – he provides bare ipse dixit statements;
(b) his opinion as to causation of the applicant’s back and hip symptoms is confusing in his first report;
(c) his criticism of Associate Professor Miniter (referred to at paragraph 27(a) above) does not by itself allow me to accept that if the applicant has an altered gait as a result of her left ankle injury, the symptoms in her back and hips result from that injury – the relevance of an altered gait has to be clarified by medical practitioners and the persuasive value of opinions in this regard has to reflect the quality of the reasoning given by those practitioners, and
(d) he has not valued highly enough the AMA Guides to the Evaluation of Disease and Injury Causation (see paragraph 27(b) above), which are objective guides – in doing so, he has expressed an unorthodox view.
The respondent submits Associate Professor Miniter’s opinions are detailed and persuasive. Many reports were taken into account, as were listed on page 2 of his first report.
The respondent concedes however that it does not rely upon the entirety of the doctor’s opinions as it has accepted that the applicant’s left ankle injury on 6 May 2016 was work-related, whereas the doctor opines otherwise (see paragraph 69 above). However, the doctor’s findings of ankle pathology pre-existing 6 May 2016 are highly relevant as the presence of the pathology requires me to delineate between that pathology and the accepted 6 May 2016 injury when determining the degree to which the applicant’s left ankle condition resulted in any consequential injury. When questioned by me however, the respondent conceded that there was no evidence before me of any pre-6 May 2016 gait issues or left ankle symptoms of the applicant’s.
The respondent next submits that the doctor’s opinion is that the applicant has finally had a good result from her left ankle surgeries (see paragraph 71 above). It submits that there cannot be a consequential condition if the underlying condition has “had a good result”.
The respondent compares the opinions of Associate Professor Miniter and Dr Patrick, and submits that if one expert witness (Dr Patrick) does not “tether his opinions to matters of learning” and the other (Associate Professor Miniter) does, greater weight should be given to the opinion that better reflects the literature. Associate Professor Miniter has provided scientific analysis rather than advocacy, and I should be persuaded by his opinion in accordance with an orthodox text, rather than the anecdotal experience of Dr Patrick.
The respondent finally submits that, while it has conceded that the applicant has issues with her gait, she has not discharged her onus of proof in tracing through how those issues have led to her current condition in her back and hips.
Applicant’s submissions in reply
These submissions were also recorded and form part of the Commission’s record. I do not propose to go through them in detail.
The applicant again emphasises her position that the literature (the AMA Guides to the Evaluation of Disease and Injury Causation) provided by Associate Professor Miniter cannot be considered to be “somehow meaningful”. She submits that the doctor misunderstood the literature relied upon by him completely.
In relation to the terms of the referral of the applicant’s chronic pain to Medical Assessment, she submits that Sakr is of limited utility to me. I then questioned the applicant as to whether she agreed with a Medical Assessment referral that included among the body parts:
Chronic Pain (to be assessed if found in accordance with Chapter 17 of the impairment guidelines - but noting that the respondent disputes that chronic pain could be found)
The applicant agreed with these terms. When I questioned the respondent as to its possible agreement in this regard, it advised that it still believed that the referral should be silent as to a chronic pain condition, but that the terms proposed by me were its “backup position”.
FINDINGS AND REASONS
Has the applicant sustained consequential injuries to her left hip, right hip, and lumbar spine, resulting from the accepted left ankle injury which she sustained on 6 May 2016
It is important at the outset to establish the relevant test for determining the presence of a consequential condition. In this regard, in Kumar v Royal Comfort Bedding Pty Limited [2012] NSWWCCPD 8 (Kumar), Roche DP provided a useful summary of what was said by Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) (at [46]-[48]):
“Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that ‘[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate’. After referring to earlier English authorities, his Honour added (at 462E):
‘Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.’
His Honour said at 463–464:
‘The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.’
His Honour concluded that the Court was left with ‘an unbroken chain of undisputed evidence’. In combination, the facts went ‘beyond mere predisposing circumstances’. They combined to make it ‘proper to reach the conclusion that the death of the worker ‘resulted from’ his original injury and all of the consequences which it set in train’. His Honour did not find that the heart attack was a s 4 injury, but confirmed the trial judge’s finding that the heart attack on 8 June 1992 resulted from the accepted back injury in 1981.”
In Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon), Roche DP stated (at [44]-[46]):
“The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
As discussed in Moon, all the applicant has to establish is that she has symptoms and restrictions in her back and hips which have resulted from the accepted injury to her left ankle. She attempts to establish this by alleging that the left ankle injury has caused an altered gait, which in turn has caused the symptoms and restrictions in her back and hips. Whether the applicant can establish this is (as noted by Kirby P in Kooragang) a question of fact to be determined following a “commonsense evaluation of the causal chain”, on the basis of the evidence, including, where applicable, expert opinions.
In relation to the medical evidence relied upon by the parties, I do not propose to afford much weight to the opinions of Associate Professor Miniter as:
(a) he did not accept that the applicant suffered an injury to her left ankle on 6 May 2016 – he is totally alone in this opinion, and the respondent has correctly not relied upon it – although the applicant has not put a great deal of medical evidence before me specifically in relation to the 6 May 2016 left ankle injury (considering the respondent’s acceptance of liability in this regard), it is clearly accepted as being work-related by Dr Patrick (who in his first report did not consider that any deduction for a pre-existing condition pursuant to s 323 of the 1998 Act needed to be made regarding his assessment of impairment with respect to the ankle – see paragraph 24 above), Dr Bentel (the applicant’s general practitioner as at 6 May 2016 who on 19 September 2016 advised the respondent’s insurer that the only injury contributing to the applicant’s left ankle condition at that time was the 6 May 2016 injury – see paragraph 30 above), Dr Diebold (who recorded the applicant’s limp as developing after the 6 May 2016 injury – see paragraph 31 above), and Dr Nicholson (who recorded the applicant as suffering a significant injury to her left ankle on 6 May 2016 in his 27 June 2017 report – see paragraph 35 above);
(b) he did not obtain a clear history of the applicant’s limping and gait issues since 6 May 2016 – these issues are documented quite extensively in the applicant’s diary records, in the clinical notes from Declan Druitt and Sally Sweeney, and in various reports from Drs Diebold, Nicholson, and Cartwright – however it seems from the documents specifically listed as being reviewed by the doctor in his first report that he did not receive the diary records or the clinical notes from Declan Druitt and Sally Sweeney – even so, he did review various reports from Drs Diebold, Nicholson and Cartwright, yet still questions the applicant’s history of limping (see paragraph 67 above) – I accept Dr Patrick’s criticism of the doctor’s first report referred to at paragraph 27(a) above in this regard;
(c) he only consulted with the applicant once – his observations and examination of her in this regard need to be compared with the extensive and consistent observations and examinations of her referred to in the many reports from her treating practitioners over what is now an eight year period – see the reports discussed between paragraphs 30-59 above;
(d) he does not in fact record any physical examination of the applicant’s back or hips, or indeed record any history that he obtained from her regarding her symptoms in her back and hips;
(e) his opinion in his first report as to the potential causal relationship between the applicant’s left ankle injury and the symptoms in her back and hips is particularly brief and lacking in sufficient explanation – the opinion in this regard is in fact extracted in full at paragraph 70 above, and
(f) his opinion in his second report as to the potential causal relationship between the applicant’s left ankle injury and the symptoms in her back and hips is also brief and does little more than contend that the “scientific evidence” shows no evidence of abnormal gait causing either back or hip disturbance – in relation to the scientific evidence he attaches some extracts from the AMA Guides to the Evaluation of Disease and Injury Causation, but in my opinion it is hard to understand how these extracts support the doctor’s contention, and neither the respondent (in its submissions to me) nor the doctor in his second report explain the relevance of the extracts – the extracts largely deal with examination techniques and observations, as well as studies which have shown (or not shown) associations between back pain and various activities (not including abnormal gait) – the extracts even specifically refer to gait abnormalities as being important in assessing a person with spinal or lower extremity complaints, and they also specifically warn an examiner of the need to observe gait over time (which the doctor did not do, but which was done by Drs Diebold, Nicholson, and Cartwright, as well as Declan Druitt and Sally Sweeney).
It follows that I reject the respondent’s submissions (at paragraphs 90 and 93 above) that Associate Professor Miniter’s opinions are detailed and persuasive. I find quite the opposite. I do not accept that the doctor has provided scientific analysis or that he has “tethered his opinions to matters of learning”.
I also reject the respondent’s submission at paragraph 92 above. Even if I accepted Associate Professor Miniter’s opinion that the applicant has now had a “good result” from her left ankle surgeries (which also seems to be to a degree supported by Dr Nicholson – see paragraph 75(c) above), it needs to be remembered that it took six sets of surgery over a period of almost six years for the “good result” to be obtained, during which time there are multiple references to the development of the applicant’s gait issues and the onset of her back and hip pain (in the reports from Drs Diebold, Nicholson, and Cartwright, as well as the clinical records from Declan Druitt and Sally Sweeney). In my opinion, any consequential condition to her back and hips that I find necessarily arose prior to the “good result” being obtained.
Further, I reject the respondent’s submission at paragraph 91 above. In the absence of any evidence before me of any pre-6 May 2016 gait issues or left ankle symptoms of the applicant’s, and in the absence of Associate Professor Miniter not developing the position put by the submission (which he did not do as he did not believe that any of the applicant’s left ankle symptoms were due to the 6 May 2016 injury), I find that I have no reliable evidence that any pre-existing condition of the applicant’s played any role in the development of her left ankle symptoms. I also note that Drs Patrick, Bentel, Diebold, and Nicholson (see paragraph 101(a) above) all do not mention any pre-existing left ankle condition of the applicant’s, and indeed Drs Patrick and Bentel specifically discount any pre-existing condition as being responsible for the applicant’s left ankle symptoms after 6 May 2016. Dr Nicholson further in his 21 December 2021 report (see paragraph 52 above) relates the applicant’s then left ankle symptoms and diagnosis “entirely” to her 6 May 2016 injury.
Having determined the opinions of Associate Professor Miniter to be unreliable, I now have to consider whether the applicant has provided me with sufficient evidence to overcome her onus of showing both:
(a) that she developed limping and gait issues resulting from her left ankle injury on 6 May 2016, and
(b) that those gait issues resulted in her experiencing symptoms and restrictions in her back and hips.
In accordance with Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen), I need to feel a sense of actual persuasion that the applicant has met her onus in this regard. In Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 (Drca), Roche DP stated (at [103]-[106]):
“Last, by saying that there was not ‘sufficient evidence’ for him to be ‘comfortably satisfied’ that Mr Drca’s gastrointestinal condition arose as a result of pain relieving medication for his accepted back injury, the Arbitrator applied the wrong standard of proof. For an applicant to succeed in a claim for compensation, he or she only has to satisfy the Commission on the balance of probabilities of the facts that establish the claim.
A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel ‘an actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (Redlich JA, Harper JA and Curtain AJA in NOM v DPP [2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712).
Once the feeling of actual persuasion has been obtained, ‘it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’’ (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes [2008] NSWCA 246).
The standard of being ‘comfortably satisfied’ is a higher standard than that of actual persuasion on the balance of probabilities. While the balance of probabilities standard will be satisfied if an Arbitrator is ‘comfortably satisfied’ that a fact exists, that is not a necessary prerequisite for satisfaction of the civil standard and the Arbitrator erred in applying that standard. The evidence only had to establish that it was more probable than not that the gastrointestinal condition resulted from the medication taken for Mr Drca’s accepted back injury.”
Dr Patrick’s opinion (extracted at paragraph 26 above) in his second report provides the applicant’s strongest evidence explaining the causal link between her left ankle injury, her limping and altered gait, and her back and hip symptoms. It is not an exhaustive opinion, but it is more explanatory than Associate Professor Miniter’s. It is more than a bare ipse dixit opinion as submitted by the respondent. It specifically refers to the applicant’s walking and ambulation difficulties following her six surgeries, which is also picked up in the treating reports especially from Dr Nicholson.
The applicant’s evidence (especially in her diary notes) as to her walking and ambulation difficulties and as to the development of her back and hip symptoms is not contested by the respondent save for its submission at paragraph 87 above, regarding the applicant not being able to give evidence as to the causation of her symptoms. I accept this submission of the respondent, but also otherwise except the truthfulness of the applicant’s diary note records.
The diary notes (see paragraph 20 above) refer to:
(a) the applicant’s balance issues;
(b) the applicant regularly using aids (crutches, boots, and other walking aids) to walk;
(c) the applicant’s difficulty walking on uneven ground;
(d) the applicant being unable to weight bear on her left foot for lengthy periods after her surgeries;
(e) the applicant’s left ankle pain and swelling after walking;
(f) the applicant’s left leg becoming shorter than her right leg;
(g) the applicant’s need for orthotics;
(h) the applicant’s difficulties when wearing steel-capped boots;
(i) the applicant’s attempts to keep weight off her left foot while walking, and
(j) the onset of the applicant’s hip and back pain – first mentioned on 17 June 2019 and then on many occasions thereafter.
The applicant’s diary notes are consistent with the walking and ambulation difficulties relied upon by Dr Patrick when he provided his opinion in his second report.
The diary notes are also consistent with the histories found in her treating practitioners reports (found between paragraphs 30-59 above), as well as in the clinical records from Declan Druitt and Sally Sweeney. The applicant does not rely upon any medico-legal reports from any of these treating practitioners requested to specifically deal with causation issues, which is surprising and potentially very risky. It is criticised by the respondent (see paragraph 88 above), but the respondent does not otherwise in its submissions deal to any great degree with the available evidence in the treating practitioners reports found between paragraphs 30-59 above, and in the clinical records from Declan Druitt and Sally Sweeney.
The applicant’s weight bearing, limping and gait issues are noted regularly by Dr Diebold (as early as 1 February 2017), Dr Nicholson (who, following the surgeries that he performed upon her, ordered significant periods of non weight bearing on her left foot, followed by gait re-training) and Dr Cartwright. The focus of the treatment provided to the applicant by Sally Sweeney and Declan Druitt was to assist the applicant with her weight bearing, walking and ambulation, having regard to her difficulties in this regard due to her altered gait.
Dr Diebold related the applicant’s limp to her 6 May 2016 injury in his 1 February 2017 and 27 April 2017 reports. It can also be clearly inferred from Dr Nicholson’s reports that he believed the applicant’s altered gait arose as she was recovering from her left ankle surgeries following her 6 May 2016 injury. He opines this specifically in his 13 February 2019 report (see paragraph 44 above) and also regularly refers in his reports to the need for gait re-training following the surgeries.
I have no difficulties (relying upon not only Dr Patrick’s opinion, but also the applicant’s diary notes and the treating reports and records from her treating practitioners) in finding that the applicant has met her onus in proving that she developed limping and gait issues resulting from her left ankle injury on 6 May 2016. I certainly feel a sense of actual persuasion in this regard.
The records from the applicant’s treating practitioners also assist in relation to outlining both the development of and the causation of the applicant’s back and hip symptoms, which I have accepted from the applicant’s diary notes began in early-mid 2019.
Declan Druitt regularly records the applicant complaining of back and/or hip pain (and the treatment which he provided to her for the pain) from 14 February 2019. He opines that it was caused by her leg length discrepancy (presumably as a result of her 6 May 2016 left ankle injury), but as I understand it, his qualifications are as an exercise physiologist, and I therefore do not give much weight to this causation opinion.
Sally Sweeney also regularly records the applicant complaining of back and/or hip pain from 19 May 2020.
Importantly, Dr Cartwright provides a causation opinion in her 12 November 2021 report (see paragraph 51 above) when she refers to the applicant’s low back and right hip pain as “secondary” to her antalgic gait. In this regard, the doctor also records the applicant as being unable to achieve even 90% of dorsiflexion at her left ankle joint. The doctor repeats this causation opinion (this time however only mentioning the applicant’s low back pain) in a more recent report dated 22 February 2023 (see paragraph 57 above).
Finally, Dr Nicholson (in his report dated 17 October 2023 – see paragraph 59 above) comments that the applicant has complained to him about back issues “as a result of her long-term gait abnormalities”.
While it would have been preferable for Drs Nicholson and Cartwright to have provided medico-legal reports requested to specifically deal with causation issues, the opinions in their treating reports are in my opinion helpful in providing the necessary support to the evidence of Dr Patrick and the applicant, in order for me to feel the necessary sense of actual persuasion that the applicant’s back and hip symptoms have resulted from her gait issues.
Although Dr Nicholson’s opinion only deals with the applicant’s back symptoms, and Dr Cartwright’s opinion only deals with her back and right hip symptoms, I am also willing to accept that her left hip symptoms have resulted from the gait issues. In this regard, having rejected Associate Professor Miniter’s opinions, having noted the applicant’s complaints both in her diary notes and to Declan Druitt and Sally Sweeney of bilateral hip symptoms, having noted that Dr Patrick provides his opinion as to causation in relation to both hips, and having considered the overall history and context of the applicant’s treatment since she injured her left ankle on 6 May 2016, my common sense evaluation of the causal chain since that injury in my opinion allows me to find consequential conditions in both the applicant’s hips resulting from the injury.
In this regard, I see some correlation between the manner in which Wood DP approached evidence from Dr Patrick in Arquero v Shannons Anti Corrosion Engineers Pty Ltd [2019] NSWWCCPD 3 (Arquero), when she stated (at [129]-[130]):
“The Arbitrator approached the consideration of Dr Patrick’s evidence by expressing the opinion that it was always difficult when the first reference to the condition was in a medicolegal report. It may be said that in some cases, that fact may pose a difficulty. However, it is not always the case. In this case, the factual basis upon which the consequential condition relies, that is the high tibial osteotomy, altered gait, limping and over-pronation, and a deteriorating condition in the right knee, is well made out in the historical reports.
Additionally, Dr Patrick was not the first doctor to record the onset of left knee symptoms. The onset of left knee symptoms was recorded by Dr Breit in September 2016, and the history provided was that the symptoms had been present for approximately 12 months. That history largely accords with Mr Arquero’s evidence.”
I find that the facts upon which Dr Patrick based his opinion in relation to the applicant are also “well made out in the historical reports” upon her, specifically in relation to her ambulation difficulties, limping, and altered gait. Additionally, Dr Patrick was not the first practitioner to record back and hip symptoms, as they were recorded variously by Dr Nicholson, Dr Cartwright, Declan Druitt, and Sally Sweeney. The histories obtained by those practitioners of the symptoms are also consistent with the applicant’s diary notes.
I also see some correlation between the manner in which Roche DP determined Kumar, when he stated (at [59]):
“While Mr Kumar’s evidence is less than ideal and the general preparation of his case by his solicitors has been sloppy, his evidence of experiencing a lot of pain in his right shoulder having to lift himself after his back surgery is unchallenged and not implausible. His symptoms were sufficient for him to seek medical treatment. Dr Di Mascio and Dr Ireland were satisfied that an aggravation had occurred in the manner alleged by Mr Kumar. In these circumstances, and given that Dr Wallace did not address the proper question, the compelling conclusion is that Mr Kumar’s right shoulder symptoms in June 2010 resulted from his accepted back injury.”
I have criticised the “less than ideal” evidence presented by the applicant, but I have found her evidence of gait issues as well as back and bilateral hip pain to be unchallenged. Dr Patrick was satisfied that the back and bilateral hip pain resulted from the gait issues, and Drs Nicholson and Cartwright also provided some support in this regard. In addition, I have found Associate Professor Miniter’s opinions to be unreliable, leading me to “the compelling conclusion” that the applicant’s back and bilateral hip symptoms have resulted from her gait issues.
After evaluating all of the evidence presented, and applying the commonsense test necessary per Kooragang, I find that there is an unbroken causal chain between the applicant’s left ankle being injured on 6 May 2016, which resulted in the development of ambulation issues, limping, and an altered gait, and which in turn resulted in the development of symptoms and restrictions in her back and bilateral hips.
How should the terms of the referral to Medical Assessment of the applicant’s chronic pain, be worded
I propose to refer the applicant’s chronic pain to Medical Assessment according to the terms proposed by me at paragraph 97 above. The applicant agreed with these terms and the respondent accept these terms as its “backup position”.
The respondent’s primary position is that I should not refer to chronic pain at all in the referral. In this regard, I reject its submissions, found at paragraph 85 above, that:
(a)referring to chronic pain in the referral might encourage a Medical Assessor to assess it – Chapter 17 of the impairment guidelines outlines how Medical Assessors are to assess chronic pain and refers to certain criteria that must be established before chronic pain can be found – if those criteria are not established, then no assessment of chronic pain can be made in accordance with the impairment guidelines – Medical Assessors are highly experienced in using the impairment guidelines to make assessments and I can see no justification for the suggestion that if the necessary criteria are not established, an Assessor would still make an assessment of chronic pain just because it is listed in the Medical Assessment referral, and
(b)its primary position is supported by Sakr – I do not agree as Sakr was a case where chronic pain was actually listed in a Medical Assessment referral (despite the defendant disputing that the plaintiff suffered from it) – the Medical Assessor then found that the plaintiff did not satisfy the criteria listed in Chapter 17 of the impairment guidelines but still assessed the plaintiff’s impairment in accordance with the chapter in the impairment guidelines dealing with upper extremities – a Medical Appeal Panel determined that the Medical Assessor was restrained by the terms of the referral (which did not include a request for an upper extremity assessment) but the Supreme Court determined otherwise, finding that the underlying dispute between the parties was the degree of the plaintiff’s permanent impairment as a result of a soft tissue injury to his right upper limb, and that despite the specific terms of the Medical Assessment referral, it was the underlying dispute (which would involve an assessment of upper extremity impairment even if there was no finding of chronic pain in accordance with Chapter 17 of the impairment guidelines) that needed to be determined by the Medical Assessor – in my opinion therefore, Sakr is of limited utility to me in drafting the terms of the Medical Assessment referral in the applicant’s claim as it only really deals with the extent to which a Medical Assessor could assess outside the specific terms of a referral – indeed, there was no complaint made in Sakr regarding chronic pain being listed in the referral.
Whereas most of the body parts and systems listed in the impairment guidelines require a determination as to injury to be made by a Member of the Commission before a Medical Assessor can assess the impairment relating to that injury, Chapter 17 of the impairment guidelines is different as it does not require a Member’s determination. There needs to be a finding of an injury to certain body parts or systems (in the applicant’s case, it will be a finding of injury to her left ankle, back, and bilateral hips), but whether chronic pain is to be assessed in accordance with Chapter 17 is to be determined by the relevant Medical Assessor applying the criteria in that chapter.
The applicant’s letter of claim in relation to her entitlement pursuant to s 66 of the 1987 Act (see paragraph 3 above) included an allegation of chronic pain and an assessment by Dr Patrick in this regard. The respondent denied the allegation of chronic pain (see paragraph 6 above). In those circumstances, in accordance with Sakr, the underlying dispute between the parties is the degree of the plaintiff’s permanent impairment as a result of her 6 May 2016 left ankle injury and its consequential conditions, including chronic pain (if found by a Medical Assessor in accordance with the criteria in Chapter 17 of the impairment guidelines). It is therefore appropriate for chronic pain to be included in the Medical Assessment referral, but also for there to be a notation as to the respondent’s disputation that it can be found by the Medical Assessor.
The purpose of any referral in my opinion is to draw the attention of the person accepting the referral to the issues being referred. I believe it is appropriate to therefore draw the attention of the Medical Assessor to both the applicant’s allegation of chronic pain and the respondent’s disputation in this regard.
SUMMARY
I find that the applicant has sustained consequential injuries to her left hip, right hip, and lumbar spine, resulting from the accepted left ankle injury which she sustained on 6 May 2016.
As a result, the applicant’s claim for lump sum compensation pursuant to s 66 of the 1987 Act in relation to the 6 May 2016 injury will now be remitted to the President of the Commission for referral to a Medical Assessor, in order for that assessor to assess the level of the applicant’s whole person impairment in relation to her left lower extremity (ankle and hip), right lower extremity (hip), lumbar spine, and chronic pain (to be assessed if found in accordance with Chapter 17 of the impairment guidelines - but noting that the respondent disputes that chronic pain could be found).
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